State Of Nct Of Delhi vs Chanderpal & Ors
2010 Latest Caselaw 4925 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CRL.L.P No.205/2008 & CRL.M.A.No.11205/2008

%                              Date of Decision: 26.10.2010

State of NCT of Delhi                                    .... Appellant
                    Through Mr.Ranjit Kapoor, ASC for the State.

                                        Versus


Chanderpal & Ors                                            .... Respondents
                             Through Mr.Ankur Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE S.L.BHAYANA

1.       Whether reporters of Local papers may be               YES
         allowed to see the judgment?
2.       To be referred to the reporter or not?                  NO
3.       Whether the judgment should be reported in              NO
         the Digest?


 ANIL KUMAR, J.

*

CRL.M.A.No.11205/2008

This is an application under Section 482 of the Criminal

Procedure Code, 1973 read with Section 5 of the Limitation Act, 1963

seeking condonation of delay in filing the criminal leave petition.

The applicant has contended that there is a delay of 55 days in

filing petition for leave to appeal. Reasons for delay are detailed in the

application. An additional affidavit dated 1st October, 2008 of Sh.Atul

Katiyar, Deputy Commissioner of Police, Outer District, Delhi Police,

has also been filed giving the details as to when the certified copy of the

judgment was applied and when the comments were received and the

persons who handled the file at various stages on various dates.

Neither any reply to the application has been filed nor any

affidavit refuting the depositions made in the affidavit dated 1st October,

2008 has been filed on behalf of the respondents.

In the circumstances, the pleas and contentions raised seeking

condonation of delay in filing the petition for leave to appeal after 55

days of the expiry of the limitation period have remained unrebutted.

The pleas disclosed in the application constitute sufficient cause in the

facts and circumstances for condoning the delay in filing petition for

leave to appeal.

Consequently, the application is allowed and 55 days delay in

filing the petition for leave to appeal is condoned.

CRL.L.P No.205/2008

This is a petition under Section 378 (1)(b) of the Code of Criminal

Procedure, 1973 seeking leave to appeal against the order and judgment

dated 23rd April, 2008 passed by the Sessions Court in Sessions Case

No.227/2006 arising out of FIR No.258/2003 under Section

452/307/34 of IPC as well as under Section 27/54/59 of the Arms Act,

1959 acquitting the respondents giving them benefit of doubt and

granting liberty to the petitioner to revive the case against accused

Roopram, Khilona and Rajender who were declared as proclaimed

offenders as and when those other accused persons are apprehended.

Brief case of the prosecution is that on the night intervening

30th/31st July, 2003 Naresh Kumar, complainant was sleeping along

with his wife and son in his house at Village Akbarpur, Majra, Delhi. He

along with his wife woke up on hearing some noise of breaking of lock

and when he opened the door he found three persons in the courtyard.

These three persons who were in the courtyard had „desi kattas‟ with

them. Naresh Kumar is alleged to have picked up a „danda‟ to deal with

the three persons and seeing Naresh Kumar picking up the „danda‟,

they fired at him and three bullets hit him in the chest and stomach

and he fell down. In the meantime, son of Naresh Kumar namely,

Sh.Arun Kumar had also come after waking up and he also received

pellet injuries.

On receiving pellet injuries Naresh Kumar became unconscious

and his wife took Naresh Kumar and her son Arun Kumar to BJRM

Hospital from where they were referred to LNJP Hospital. A case was

registered under Section 452/307 of IPC on the statement of injured

persons and the efforts were made to trace out the accused persons.

The version of the prosecution is that on 26th August, 2003, the

present respondents were arrested under the Arms Act and different

cases bearing FIR Nos. 510, 511 and 512 of 2003 were registered

against them. On interrogation, the respondents who were arrested in

cases under the Arms Act made a disclosure statement and also

admitted their guilt in respect of the incident of 30th/31st July, 2003

where Naresh Kumar and his son were fired upon resulting into pellet

injuries to both of them. They had disclosed about the involvement of

three other persons also namely Roopram, Khilona and Rajender,

however, these three other persons have remained untraced. After

preparing the necessary documents, challan was filed against the

present respondents for the offences under Section 452/307/34 IPC

read with offence under Section 27 of the Arms Act, 1959. The cases of

the respondents were committed to the Sessions Court and they were

charged under Section 460 of IPC and for the offences under Section

307/398 and 34 of IPC and a separate charge under Section 27 of Arms

Act, 1959 was also framed against respondent No.1 Chanderpal for

using the country made pistol in causing injuries. The respondents

pleaded not guilty. During the trial witnesses were examined by the

prosecution and accused persons were also examined under Section

313 of the Criminal Procedure Code, 1973. The respondents, however,

did not lead any evidence.

After hearing the parties and considering the deposition of

witnesses, especially the eye witnesses, PW 3 Naresh Kumar,, PW 4

Arun Kumar, the Sessions Court gave benefit of doubt to the

respondents as Arun Kumar and Smt. Beermati w/o Naresh Kumar had

not identified the accused and even the testimony of Naresh Kumar was

not relied upon as there were improvements in the deposition of Naresh

Kumar in his statement recorded under Section 161 of the Criminal

Procedure Code, 1973. The statement of Naresh Kumar was not

recorded at any earlier point of time by the investigating officer before

10th September, 2003 whereas the incident had allegedly occurred on

the night of 30th/31st July, 2003. The trial Court also took into

consideration that accused/respondents were not taken in muffled

faces when they were taken to the place of incident.

This is no more res integra that unless the conclusions of the

Court drawn on the evidence on record are unreasonable, perverse or

unsustainable, the High Court should not interfere with the order of

acquittal, although the power of the High Court to reassess the evidence

and reach its own conclusions are as extensive as in an appeal against

the order of conviction, yet as a rule of prudence, the High Court should

always give proper consideration to matters such as (i) the views of the

Trial Judge as to the credibility of witnesses; (ii) the presumption of

innocence in favor of the accused, a presumption certainly not

weakened by the fact that he has been acquitted at the trial; (iii) the

right of the accused to the benefit of any doubt and (iv) the slowness of

an appellate Court in disturbing a finding of fact arrived at by a Judge

who had advantage of seeing the witnesses. In the entirety of facts and

circumstances this Court does not find that the conclusions of the Trial

Court are unreasonable, perverse or unsustainable. In reversing the

finding of acquittal, the High Court has to keep in view the fact that the

presumption of innocence is still available in favour of the accused

which is rather fortified and strengthened by the order of acquittal

passed in his favour. Even if on fresh scrutiny and reappraisal of the

evidence and perusal of the material on record, if the High Court is of

the opinion that another view is possible or which can be reasonably

taken, then the view which favours the accused should be adopted and

the view taken by the Trial Court which had an advantage of looking at

the demeanour of witnesses and observing their conduct in the Court is

not to be substituted by another view which may be reasonably possible

in the opinion of the High Court. Reliance for this can be placed on

2009(1) JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of

Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public

Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v.

State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622

Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu

Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v.

State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the

golden thread which runs through the web of administration of justice

in criminal cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the accused and the

other to his innocence, the view which is favourable to the accused

should be adopted. The paramount consideration of the Court is to

ensure that miscarriage of justice is prevented. A miscarriage of justice

which may arise from acquittal of the guilty is no less than the

conviction of an innocent. The High Court has the power to reconsider

the whole issue, reappraise the evidence and come to its own

conclusions and findings in place of the findings recorded by the Trial

Court, if the findings are against the evidence or record or

unsustainable or perverse.

This Court has heard the learned Additional Standing Counsel for

the State, Sh.Ranjit Kapoor in detail and has perused the testimonies of

the witnesses and the relevant record and has also heard the counsel

for the respondent Nos.1 to 3. Learned Additional Standing Counsel has

not been able to raise any cogent ground as to why the testimony of

Naresh Kumar be believed in the facts and circumstances when there

are major improvements made by him in his statement in comparison

to his statement recorded under Section 161 of the Criminal Procedure

Code, 1973. The learned counsel is also unable to give any cogent

reason for preparing the pointing out memos and disclosure statement

of the present case referring it as of FIR No.258/2003 in place of FIR

No.308/2003. The plea that this was on account of inadvertence cannot

be accepted. This does not appear to be by inadvertence as constable

Rajender Singh and constable Jogender Singh are alleged to be two

witnesses to the preparation of disclosure statement and the pointing

out memos by ASI Jai Kumar at the instance of the respondents. ASI

Jai Kumar as PW 11 had stated in the cross examination recorded on

26th February, 2008 as under:

".... It is correct that when I had taken the police custody remand of the accused persons then they were not kept in muffled faces. We had not gone inside the house of the complainant Naresh Kumar.... The said house was towards the end of the said gali. About one house prior to the house of complainant the accused persons had pointed out the place of incident to me. I did not go the house of accused persons as some law and order could have arisen if the accused persons could have been seen and identified by some other persons. There were 2/3 other police constables were with me. We all were in uniform. Some public persons had gathered over there. I did not join any public person in the proceedings. The house of Naresh Kumar was two storeyed house. I had not mentioned anything in the memos that the accused persons had pointed out the place of occurrence from at a distance of about one or two houses away"

This becomes more profound as these proceedings do not find any

mention in the statements recorded under Section 161 of the Criminal

Procedure Code, 1973. Another surprising thing which has been noticed

by the Trial Court is that ASI Jai Kumar had prepared the pointing out

memos without going to the place of incident. In the circumstances, the

findings and the observations of the Trial Court in this regard cannot be

held to be unsustainable or perverse or contrary to record so as to

require further consideration and to grant leave to appeal for this

purpose.

The respondents can be convicted in case there is sufficient

evidence about their identification. The learned Additional Standing

Counsel for the State has not disputed that out of the three eye

witnesses namely Naresh Kumar PW 3, Arun Kumar PW 4 and

Smt.Beermati PW-5, PW 4 Sh.Arun Kumar, son of Naresh Kumar and

PW 5 Smt.Beermati, widow of Naresh Kumar, have not identified the

accused persons and have clearly stated that they were unable to

identify the accused persons who had intruded in their house and had

robbed them. PW 4 Arun Kumar rather stated that he cannot identify

accused persons, if shown to him, as he had reached the spot and saw

them for a very short period

This leaves with the deposition of Naresh Kumar, PW 3 only.

Though the evidence of Test Identification Parade only has corroborative

value as substantive piece of evidence is the identification in the Court,

however, where suspect is already shown to the witnesses before the

Test Identification Parade, his identification in the Court becomes

valueless and the accused cannot be convicted on the basis of such

identification. The Supreme Court in 1998 SCC (Crl.) 1276, Shaikh

Umar Ahmed Shaikh and Anr v. State of Maharashtra on account of

strong probability in that case that the suspects were shown to the

witnesses had held that their identification in the Court by the

witnesses was meaningless. The Supreme Court had further held that

the statement of witnesses in the Court identifying the accused in the

Court lost all its value and could not be made the basis for recording

the conviction against the accused and had set aside the convictions

which were passed on such unreliable evidence. In this case on strong

probability that the suspect were shown, their subsequent identification

was held to be valueless. In the present case it was categorically

admitted by PW 3 Naresh Kumar that the police had shown the accused

to him on 10.9.2003 and he had identified them. The Supreme Court in

another case, (1998) SCC (Cri.) 201, Ganpat Singh and Anr v. State of

Rajasthan had also held that where the accused were shown to the sole

witnesses in the police station who later identified them in the Test

Identification Parade, the evidence of such persons in the Court after

considerable time was held to be not reliable and could not be the basis

for conviction. From the evidence of ASI Jai Kumar, a relevant part of

which is reproduced above, it is apparent the accused persons were not

in muffled faces when he had taken them to the place of incident and

when they were taken for police remand. PW 3 has also deposed that

the police had shown them to him. In the circumstances, if the accused

refused to participate in the Test Identification Parade, no adverse

inference can be drawn against the accused and in the circumstances

only on the testimony of PW 3 Naresh Kumar in the Court identifying

the accused, they cannot be convicted. The findings of the Trial Court in

the facts and circumstances cannot be held to be unsustainable or

perverse nor the learned counsel for the State has made out any such

ground on which the leave to appeal should be granted to the petitioner.

The learned counsel for the State is also unable to explain

satisfactorily the fact that on 10th September, 2003 the statement of

Naresh Kumar was recorded under Section 161 of the Criminal

Procedure Code, 1973 and not just after the incident on 30th/31st July,

2003. Though Sh.Naresh Kumar had received the pellet injuries and

was admitted to the hospital, however, it is not the case of the petitioner

that he was not in a fit state upto 10th September, 2003 to give the

statement.

The Trial Court has also doubted the version of the petitioner that

the witnesses visited the police station on their own to enquire about

their case and found the accused persons sitting over there and

identified them to be the alleged robbers who had robbed and had

intruded in their house. From the perusal of the evidence and other

facts and circumstances the observations and findings of the trial Court

cannot be construed to be unsustainable or perverse and on this

ground the order of acquittal cannot be faulted nor the petitioner is

entitled for leave to appeal in the facts and circumstances.

The statement of Naresh Kumar before the Court had

improvement, is apparent from his statement under Section 161 of the

Criminal Procedure Code, 1973 where he had deposed that he had

grappled with the accused and other persons. This statement was also

reiterated by Smt. Beermati and her son, Arun Kumar, under Section

161 of the Criminal Procedure Code, 1973. However, before the Trial

Court, Naresh Kumar did not depose about grappling with one of the

intruders and catching hold of him. Rather the deposition of Sh.

Naresh Kumar is that on being injured by the intruders his wife, Smt.

Beermati fell down and became unconscious and he also became

unconscious on receiving pallet injuries. Taking all these facts

cumulatively makes the deposition of Sh.Naresh Kumar about

identifying all respondents as the persons who had intruded in his

house and robbed him, unreliable and only on the basis of the same,

the accused cannot be convicted.

In the circumstances this Court also does not find any illegality,

irregularity, unsustainability or perversity in not relying on the

testimony of Sh.Naresh Kumar regarding identification of the

respondents. Though this is not disputed and cannot be disputed that

the persons had intruded and had robbed Sh.Naresh Kumar and his

family members, however, this has not been established beyond

reasonable doubt that the said accused persons were the three

respondents as has been reasoned out hereinabove.

Regarding the recovery also the evidence produced by the

prosecution is not cogent and reliable. PW 4, Arun Kumar had deposed

when shown the cartridge in the Court that the shown cartridge was

not the cartridge which was recovered as the recovered cartridge was

somewhat bigger. During recording of deposition of PW 8, Dharampal,

the Trial Court had observed that the cartridge produced in the Court

was the front bullet head containing the lead at the top of it and is not

an empty cartridge and it was not the fired cartridge. In Ex PW 7/A

which was the figure of the cartridge drawn, head was shown to contain

lead. Regarding other article which allegedly contained the blood stains,

it was observed by the Trial Court that all the articles had some black

mark upon them and without chemical examination it could not be

stated that they had blood stains. In the cross examination of PW 8 on

20th November, 2007 it was admitted by the said witness that no

recovery of any incriminating article was effected by the said witness at

the instance of the accused persons.

No other ground has been raised by the learned Additional

Standing Counsel for the State entitling the petitioner for leave to

appeal against the order dated 23rd April, 2008 acquitting the

respondents of the charges made against them in the case as detailed

herein above.

From the perusal of the relevant testimonies and the documents,

another view contrary to the view taken by the Trial Court is not

possible and cannot be reasonably taken. However, even if another view

is possible, this Court is not to substitute its view with the view of the

Trial Court so long as the view taken by the Trial Court is reasonable

and plausible. In the circumstances, the order of the Trial Court

cannot be termed to be unsustainable or perverse and there are no

grounds made out by the petitioner to grant leave to petitioner to appeal

against the order dated 23rd April, 2008 acquitting the respondents of

all the charges against them. The petition is therefore without any merit

and it is, therefore, dismissed.

ANIL KUMAR, J.

S.L.BHAYANA, J.

OCTOBER 26, 2010 „k‟